Wilton Gateway Hotel Limited & another v Kenya Hotels and Allied Workers & another [2020] KECA 313 (KLR)
The bottom line
#Kenya's Court of Appeal paused enforcement of an employment award because the workers who won could not prove they could repay the money if the hotel's appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Test for stay of execution pending appeal under Rule 5(2)(b)
The applicant must satisfy both limbs: an arguable appeal and that the appeal would be rendered nugatory absent stay. The court exercises original and discretionary jurisdiction.
The court restated the Kinyanjui v Ketter principles: Rule 5(2)(b) confers original, wide and unfettered discretion exercised only after a notice of appeal is filed under Rule 75. A single bona fide arguable ground suffices for arguability, and the court must not make definitive findings of fact or law at that stage. Nugatory-ness considers reversibility and whether damages would compensate, with the onus on the respondent to rebut allegations of impecuniosity.
Arguability of the intended appeal
The draft memorandum raised arguable grounds, including liability of the 2nd applicant in her individual capacity, locus of the 1st respondent, and awards to employees without documentary evidence.
The court examined the draft memorandum of appeal and identified grounds including whether the Judge erred in finding the 2nd applicant liable individually with no proof of directorship, failure to determine a preliminary objection on the 1st respondent's locus, and awards to three employees lacking documentary support. It found these raised arguable issues, satisfying the first limb without making definitive findings.
Nugatory-value of the appeal
Execution was imminent, and the respondents did not demonstrate ability to refund the decretal amount if the appeal succeeded, so the appeal would be rendered nugatory without stay.
The 1st respondent's letter of 8th January 2020 showed execution would follow if the decretal amount was not paid. Applying the shifted onus from Kinyanjui v Ketter, the respondents failed to adduce evidence of ability to refund the decretal sum. The applicants' apprehension that grievants and the 2nd respondent could not refund therefore established the second limb for stay.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the twin principles of arguability and nugatory-value: a single bona fide arguable ground suffices, and where the respondent's impecuniosity is alleged, the onus shifts to the respondent to prove ability to refund.
Court orders
#- 1.Stay of execution of the judgment and decree of the Employment and Labour Relations Court dated 22nd November 2019 pending the hearing and determination of the intended appeal
- 2.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Cause No. 1615 of 2015 consolidated with ELRC Cause No. 2247 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilton Gateway Hotel Limited & another v Kenya Hotels and Allied Workers & another [2020] KECA 313 (KLR)", Case Analysis (2020). Civil Application No. NAI 26 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/313/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.